This is an appeal from the decision[1]
of the Regional Trial Court, Branch 2, Tagum, Davao
in Criminal Case No. 7245, finding accused-appellant Pacifico Sumaoy guilty of
murder and sentencing him to suffer the penalty of reclusion perpetua,
to indemnify the heirs of the deceased, Zandro Vargas, in the sum of P30,000.00 and to pay the costs.

Accused-appellant was convicted for the killing on July 9, 1988 of Zandro Vargas, a boy
16 years of age, in Tagum, Davao.Wilbert Vargas, the victim’s brother, and
Patricio Jacobe, Jr. identified accused-appellant Pacifico Sumaoy as the
assailant, together with three others who have remained unidentified and at
large.

Patricio Jacobe, Jr. testified that he worked as a pin boy in a
billiard hall on Roxas Street,
Tagum, Davao.At 5:45 p.m.
of July 9, 1988, he left the
billiard hall to have some beer at the Pacing’s Carinderia on Sobrecary
Street.Afterward, he went back to the billiard hall, passing by the J Spot
Carinderia at the corner of Roxas and Sobrecary Streets, where he saw the
deceased Zandro Vargas talking to accused-appellant Pacifico Sumaoy.Three other men were with them but Jacobe did
not recognize the three.

Upon reaching the billiard hall, Patricio Jacobe, Jr. piled some
billiard balls, then went out and stood on the sidewalk.He was startled by the sound of a
gunshot.When he turned to find out
where the sound came from, he saw Zandro Vargas running towards Roxas
Street with his right arm bleeding.Zandro Vargas tried to seek refuge at the Try
Me beauty parlor, but he was overtaken by accused-appellant who dragged him
towards a waiting tricycle.Accused-appellant had a gun.The
accused-appellant and three other men then boarded the tricycle taking Zandro
Vargas with them.Jacobe allegedly heard
one of accused-appellant’s companion say that they were taking Zandro to the
hospital.Later that evening Jacobe
learned that Zandro was found dead in a kangkong field near the DavaoVisayanVillage.

The other prosecution witness, Wilbert Vargas, is the brother of
the deceased.Wilbert testified that at 6:00 p.m., on July 9, 1988, while he was talking to a friend on Roxas
Street near the public market, he was told that
his brother Zandro was being beaten up in a carinderia at the corner of Roxas
and Sobrecary Streets.Wilbert
immediately proceeded to the J Spot Carinderia.He saw accused-appellant aiming his gun at Zandro as the latter was
running away.Accused-appellant shot
Zandro Vargas, hitting the latter in the forearm, and causing him to fall on
his knees.Zandro Vargas was then
dragged by accused-appellant and three unidentified men towards a
tricycle.Wilbert Vargas saw his brother
loaded onto the tricycle “like a pig,” with Zandro’s feet hanging out.Wilbert tried to come to the aid of his
brother but accused-appellant pointed his gun at him, causing him to run home
in fear.

Wilbert Vargas told his parents what had happened to his
brother.They searched for Zandro.They went to Mangga, Davao and there learned
from Jose Montilla, the driver of the tricycle which accused-appellant Sumaoy
and his companions hailed, that Zandro had been killed and that his body had
been dumped in a kangkong field in Visayan Village, Tagum, Davao.Wilbert and his parents proceeded to the
place indicated and there found Zandro’s dead body.

Wilbert Vargas identified Pacifico Sumaoy as one of the
assailants.Wilbert testified that he
recognized Sumaoy because the latter was assigned to the military detachment in
the Diwalwal mining area where Wilbert used to work.Dr. Jose Lopez, Municipal Health Officer of
Tagum, who examined the body of Zandro Vargas, issued a death certificate.Under questioning by the prosecutor, Dr.
Lopez testified as follows:

QYou said you placed your
findings in the certificate of death, please read the findings, Doctor.

A(Reading) – “I hereby
certify that I have this 10th
day of July 1988 performed an autopsy upon the body of the deceased Zandro
Rinia Vargas and that the cause of death was as follows:Shock, irreversible, due to gunshot wounds located
at (1) right frontal into cranial cavity exiting at right upper occipital; (2)
right eyebrow exiting at left lower occipital; (3) left temporal (no exit); (4)
right arm lateral going out at medical and going into right axillary into
thoracic cavity (no exit)”.

Q:Will you explain your
findings to us, Doctor?

A:There were four (4)
gunshot wounds found on the body of the victim No. 1 was at the right frontal
(witness pointing at his middle forehead) going into the cranial cavity going outside
(witness pointing at the back of his head); No. 2, at the right eyebrow
(witness pointing at the middle of the right eyebrow) going out to the left
lower occipital ( witness pointing at the back of his head, left side near the
ear); No. 3 wound is found at the temporal without exit (witness pointing at
the left side of his head, a little above the left ear);and the No. 4 wound is found at the right arm
lateral (witness pointing at his right-upper arm, outside) going at medial
aspect then same bullet passed into the axillary region into the thoracic
cavity, no more exit, the right-upper arm as entrance and exit inside of the
right-upper arm and then going into the right chest (witness pointing at the
right side of his body just about 3 inches below the armpit).[2]

Accused-appellant denies participation in the killing of Zandro
Vargas.He claims that the whole day of July 9, 1988 he was on duty as an
enlisted personnel of the 1103rd
Criminal Investigation Services (CIS) in Tagum, Davao.Accused-appellant identified a document
signed by Technical Sergeant Ricardo Go called “Duty Detail” showing that
accused-appellant was on duty from 8:00 a.m. of July 9, 1988 to 8:00 a.m. of
July 10, 1988.Ricardo Go, Technical Sergeant,
Philippine Constabulary and Team Leader of the Criminal Investigation service
Command, Tagum, Davao, and
Patrolman Narciso Vismanos, corroborated the accused-appellant’s alibi.

On June 6, 1991,
the Regional Trial Court of Tagum, Davao
rendered a decision finding accused-appellant guilty of murder qualified by
treachery.The trial court noted that
accused-appellant Sumaoy shot Zandro while the latter was running away and held
that the three bullet wounds sustained by Zandro in the head showed that he was
shot while in a helpless and defenseless condition.The trial court appreciated the ordinary
aggravating circumstance of taking advantage of public position against
accused-appellant Sumaoy.

Accused-appellant Sumaoy has appealed from this decision of the
trial court.He contends that the
prosecution evidence does not fulfill the test of moral certainty necessary to
support a judgment of conviction.He
points out that no proof was presented as to the type of weapon used in the
shooting of Zandro Vargas, and he challenges the testimony and credibility of
witnesses Wilbert Vargas and Patricio Jacobe, Jr.

On the other hand, the Solicitor General, in representation of
the prosecution, argues that the circumstances established by the prosecution,
when taken together, constitute an unbroken chain leading to the inevitable
conclusion that accused-appellant shot and killed Zandro Vargas.While there is no direct evidence showing
that it was indeed accused-appellant who shot Zandro in the head, the Solicitor
General claims that the testimonies of Wilbert Vargas and Patricio Jacobe that
Zandro was last seen alive with accused-appellant and three other men clearly
prove that no other person could have shot and killed Zandro Vargas than
accused-appellant Pacifico Sumaoy.

We agree with the Solicitor General that the circumstantial
evidence in this case establishes beyond reasonable doubt that
accused-appellant shot and killed Zandro Vargas.These circumstances, as pointed out by the
Solicitor General, are the following:

(a)Zandro was
being mauled by appellant and his companions (p. 5, TSN, June 28, 1990);

Together these circumstances constitute
an unbroken chain which leads to only one fair and reasonable conclusion – that
the accused is guilty of the killing of Zandro Vargas.

It was established by positive testimony that accused-appellant
Sumaoy shot the deceased in the arm and thereafter took the victim with him to
an undisclosed location with the help of three other men.Only the accused-appellant was seen with a
firearm.Less than 24 hours later, the
victim was found dead.Not only was
accused-appellant identified as the person with whom Zandro Vargas was last
seen alive, he was also positively identified as the person who shot Zandro
Vargas in the arm.There is thus proof
of aggression on the part of the accused which, taken with the other
circumstances, shows he had the intent to inflict injury upon the victim.

In the case of People v. Fulinara,[4]
the accused were convicted of kidnapping with murder based upon positive
testimony that the victim was last seen alive when he was forcibly abducted by
two armed men in army fatigues who were later identified as the accused.After the victim was abducted by the accused
he was later found dead.As in the case
before us, there was no eyewitness at the precise moment the victim was killed.

Accused-appellant contends that he cannotbe convicted without the presentation of the
gun in evidence.He alleges that the
prosecution’s failure to match the slugs recovered from the body of Zandro
Vargas with accused-appellant’s own firearm precludes his conviction.This contention has no merit.The presentation and identification of the
weapon used are not indispensable to prove the guilt of the accused.[5]
The time which elapsed from the moment the victim was last seen alive and the
moment his body was found narrows the possibility that another agent caused his
death,[6]
especially where an aggression was established against the victim before he
disappeared with the accused.

The accused-appellant tries to discredit the testimonies of the
principal prosecution witnesses.He
points out that Patricio Jacobe, Jr. testified that Zandro was shot in the
right arm, while Wilbert Vargas said Zandro was shot in the left.This is, however, an inconsistency concerning
a minor matter which does not impair credibility of the witnesses.The inconsistency negates any suspicion that
the testimonies were perjured or rehearsed.[7]
Moreover, findings of fact of trial courts, particularly with respect to the
credibility of witnesses who personally appeared and testified before them,
must be respected on appeal.[8]

Accused-appellant’s defense of alibi is of no moment.Not only was accused-appellant positively
identified as the person who had shot and taken Zandro Vargas to an undisclosed
placed.It is also settled that for
alibi to prosper, it is not enough that accused-appellant prove that he was
somewhere else when the crime was committed.He must demonstrate that he could not have been physically present at
the place of the crime or in its immediate vicinity at the time of its
commission.The testimony of
accused-appellant. T/Sgt. Go and Pat. Narciso Vismanos failed to show that it
was impossible for the accused to be at the scene of the crime.The CIS office was only one kilometer away
from the scene of the crime.In
addition, Vismanos admitted that he was so absorbed in his work that he did not
really know whether accused-appellant was in the office premises the entire day
of the latter’s duty.[9]

While the evidence in this case sufficiently establishes the
guilt of the accused-appellant for the killing of victim Zandro Vargas, we
think he cannot be held liable for murder because of the absence of evidence as
to the manner of the actual killing.Where no particulars are known as to the manner in which the aggression
was made or how the act which resulted in the death of the victim began and
developed, it cannot be established from mere suppositions that the accused
perpetrated the killing with treachery.[10]
The evidence shows that the aggression against the victim began when he was
still at the J Spot Carinderia.As a
matter of fact, according to Patricio Jacobe, Jr., the deceased was trying to
flee from the accused-appellant when the latter shot him, thus indicating that
the victim had been forewarned of a greater aggression against him.The assault on the victim cannot be said to
have been made in a sudden or unexpected manner so as to justify a finding of
treachery.[11]

The trial court also erred in finding the aggravating
circumstance of taking advantage of official position in the commission of the
offense.This circumstance requires that
the accused, as a public officer, used the influence or reputation of his
position for the purpose of committing the crime.If the accused could have perpetrated the
crime without occupying his position, then there is no abuse of public
position.In the case before us, no
evidence was adduced to show that the killing of Zandro vargas was in any way
facilitated by the accused-appellant’s public position.It was not even shown whether the
accused-appellant wore his uniform or used his service firearm when he
committed the crime.[12]

WHEREFORE, the decision of the Regional Trial Court is
MODIFIED, finding accused-appellant Pacifico Sumaoy guilty of homicide, and
SENTENCING him to suffer an indeterminate penalty of 12 years of prision
mayor, as minimum, to 17 years of reclusion temporal, as maximum, to
indemnify the heirs of the deceased Zandro Vargas in the increased sum of P50,000.00
and to pay the costs.